Cox v. Thomas
| Citation | 216 Ala. 282,113 So. 261 |
| Decision Date | 26 May 1927 |
| Docket Number | 8 Div. 795 |
| Parties | COX v. THOMAS. |
| Court | Supreme Court of Alabama |
Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.
Action by L.W. Thomas against W.W. Carpenter & Son; C.B. Cox garnishee. From a judgment for plaintiff, the garnishee appeals. Affirmed.
The jury's verdict or findings based on conflicting testimony will not be disturbed on appeal.
Statement by SOMERVILLE, J.:
The plaintiff, L.W. Thomas, sued W.W. Carpenter & Son, on August 16, 1922, for work and labor done by him for defendants on public road construction, and on the same day sued out an ancillary writ of garnishment against C.B. Cox, as garnishee.
On August 23, 1922, Cox filed his written answer, averring that he was not then, nor after the garnishment, indebted to the defendants in money or property, but his answer further stated:
"That he contracted with one L.P. Mason to build certain portions of the state highway, which is now under construction in Marshall county, Ala.; that the said L.P Mason subcontracted this work to W.W. Carpenter & Son, and departed the state, and is now a nonresident of the state of Alabama; that the said W.W. Carpenter & Son quit the contract and left the state and are now nonresidents of the state of Alabama, and the said garnishee was forced to take over the contract of the said W.W. Carpenter & Son and complete the work; that he cannot tell at this time, nor will he be able to tell until the work is completed, whether or not he will be indebted in any sum whatsoever to the defendants."
At the next session of the circuit court of Marshall county, held on January 13, 1923, plaintiff appeared and filed his motion to amend the complaint by making C.B. Cox a party defendant, and also to have an oral examination of the garnishee. Both motions were granted, and the cause was continued.
Cox was made a party defendant by process served on him on April 5 1923.
On April 14, 1923, Cox demurred to the complaint on several grounds; and on December 10, 1923, he made further answer to the garnishment, denying any indebtedness, and claiming that Carpenter & Son were indebted to him in the sum of $772.03, "by reason of default in the execution and completion of a contract for the construction of a part of a public highway."
On July 17, 1924, plaintiff and Cox appeared by their attorneys, and, on Cox's objection "to being made a party defendant in this case," it was "ordered and adjudged that his name be stricken as a party defendant," and that he recover costs, etc.; "and, after oral examination of the garnishee denying liability, the plaintiff files his contest of such answer," and the cause was ordered continued.
The contest thus filed by plaintiff set up seven grounds specifying wherein the garnishee's answer was untrue, challenging the amount of work done by defendants, the amount of the retained percentage of what was due them, the amount of work necessary to complete defendants' contract, and the amount of the garnishee's account against defendants.
To this statement of contest the garnishee demurred, on the grounds, substantially, that it did not show that he was indebted to defendants, nor how he was indebted, and that the issues tendered were matters of evidence only, and were foreign to the real issues.
On January 13, 1925, this demurrer was overruled, and, issue being joined on the contest, the verdict of the jury was that the garnishee, Cox, was indebted to defendants in the sum of $3,375, and judgment was rendered for plaintiff against the garnishee for the amount of plaintiff's judgment against defendants, being $955, with interest.
Before entering upon the trial, Cox moved the court to strike the garnishment cause from the docket, on the ground that the contest was filed too late, and also because the garnishee had been made a party defendant to the main suit, which motion was overruled.
The evidence showed that the W.T. Taylor Construction Company was under contract with the state highway department to build a public road known as project No. 88 in Marshall county; that said company, on May 9, 1922, sublet a specified portion of said work to C.B. Cox and L.W. Malone, that Cox and Malone divided up their work, and Cox, on May 9, 1922, sublet a portion of his part to W.W. Carpenter & Son and L.P. Mason, and on July 13, 1922, said Mason conveyed and transferred to Cox "all interests or shares in all estimates past or future (on this project) which might otherwise have accrued to L.P. Mason, or L.P. Mason & Co.," and in consideration therefor Cox assumed "all outstanding obligations of L.P. Mason, or L.P. Mason & Co., incurred in connection with (this project), (except one specified account), and for value received for all due L.P. Mason over and above these obligations."
Plaintiff's evidence tended to show the amount of work done by Carpenter & Son and the amounts due therefor under the contract, prior to their abandonment of the work.
The garnishee's evidence tended to show that Carpenter & Son owed a balance to him after he completed the work.
Charges 1 and 2, refused to the garnishee, were as follows:
The garnishee moved for a new trial, which motion was overruled, and he appeals.
J.A. Lusk, of Guntersville, for appellant.
Thos. E. Orr, of Albertville, for appellee.
The record shows that the garnishee, Cox, filed his written answer August 23, 1922, denying his indebtedness to the defendants, and stating that he could not say whether he would in future be indebted to them until he had completed certain work which they had contracted to do, but had abandoned unfinished. This answer was not controverted, but on January 13, 1923, at the next ensuing open session of the circuit court, plaintiff moved the court for an oral examination of the garnishee, and this motion was granted, and the cause continued.
Thereafter, on December 13, 1923, the garnishee filed another answer, denying any indebtedness at all, and claiming that defendants were indebted to him.
It further appears that the oral examination was held on July 17, 1924, the garnishee "denying liability," and that plaintiff thereupon filed "his contest of such answer."
In First National Bank v. Dimmick, 177 Ala. 571, 589, 58 So. 658, 664, in the originally dissenting opinion of Mayfield, J., which on rehearing was adopted as the opinion of the court, it was declared:
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